On December 19, 2012, the Bureau of Safety and Environmental Enforcement (BSEE) issued a draft Policy Statement that is intended to ensure a positive safety culture in those entities, including previously unregulated service companies, operating in federal waters.

BSEE indicated that its draft Policy Statement seeks to address the recommendations made in the wake of the Deepwater Horizon incident to improve the safety culture on the Outer Continental Shelf (OCS). BSEE was also influenced by the Nuclear Regulatory Commission’s initiative to improve safety at nuclear facilities following the 1979 accident at Three Mile Island.

BSEE’s draft Policy Statement defines safety culture as the core values and behaviors resulting from a collective commitment by leaders and individuals to emphasize safety, over competing goals, to ensure protection of people and the environment. The draft Policy Statement sets forth nine characteristics that, according to BSEE, are present in a positive safety culture: (1) Leadership Safety Values and Actions; (2) Problem Identification and Resolution; (3) Personal Accountability; (4) Work Processes; (5) Continuous Learning; (6) Environment for Raising Concerns; (7) Effective Safety Communication; (8) Respectful Work Environment; and (9) Inquiring Attitude. The draft Policy Statement briefly expands on each of these characteristics. For example, in describing how a positive safety culture is evident in Work Processes, BSEE explains that the “process of planning and controlling work activities is implemented so safety is maintained.” BSEE also notes that there may be additional traits not included in this list that are important in a positive safety culture.

BSEE has requested public comments by March 20, 2012, listing seven issues on which input is particularly welcome: (1) safety culture characteristics relevant to OCS activities that were not mentioned in the draft Policy Statement; (2) whether any of the characteristics mentioned in the draft Policy Statement do not contribute to safety; (3) clarifications needed to BSEE’s definition of safety culture; (4) comments or clarifications regarding the wide range of persons and entities that would be subject to the Policy Statement; (5) how clear the draft Policy Statement is as to BSEE’s stated intentions; (6) what other factors might be considered to further safety culture; and (7) how BSEE can better involve stakeholders to address safety culture.

While the draft Policy Statement is clearly a beneficial statement of aspirations, the mere listing of safety characteristics, with only a cursory description of each characteristic, fails to provide clear, unambiguous and verifiable standards of performance. Equally noteworthy is BSEE’s recognition that other characteristics not on this list may be important to a positive safety culture. BSEE’s potential use of its draft Policy Statement for enforcement purposes, not just as a statement of aspirations, is of particular concern given BSEE’s stated intention to consider all entities engaged in regulated activities to be jointly and severally liable with the lessee and operator for regulatory violations.

All entities, including service companies, operating in OCS waters should carefully consider the impact of BSEE’s draft Policy Statement and should assess whether comments should be filed. These entities should consider the impact on all facets of operations, including compliance plans and, for lessees and operators, their Safety and Environmental Management System plans.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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